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The Federalist Papers

In Search of Original Intent

Day 1:• Background 10of

Constitutional Convention; • Purpose of Federalist Papers;• Federalist No. 1

Constitutional Convention

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Facts about the Constitutional ConventionWho – 55 Delegates from 12 of the 13 StatesWhen – May 25 to September 17, 1787Where – Pennsylvania “State House,” renamed

“Independence Hall,” in PhiladelphiaWhy – initially, to revise the Articles of

Confederation.Soon became an effort to restructure the United States

Government

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STATE RATIFICATION VOTE YAY/NAYDelaware December 7, 1787 30-0

Pennsylvania December 12, 1787 46-23New Jersey December 18, 1787 38-0

Georgia December 31, 1787 26-0Connecticut January 8, 1788 128-40

Massachusetts February 6, 1788 187-168*Maryland April 26, 1788 63-11

South Carolina May 26, 1788 149-73New Hampshire June 21, 1788 47-47*

Virginia June 29, 1788 89-79*New York July 26, 1788 30-27*

North Carolina November 21, 1788 194-77*Rhode Island May 29, 1790 34-32*

* With Amendments

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Principles of the EnlightenmentReason, order, balance, logic, science, separation of church from government, progress, Deism“Jefferson Bible”

Federalist PapersWhat Were They and Why Were They Written?

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What Was The Federalist ?85 Newspaper Articles, published between October

27, 1787, and August 16, 1788Purpose – to explain to the states (Particularly NY)

why they should ratify the ConstitutionWritten by John Jay (5), James Madison (29), and

Alexander Hamilton (51) – “Publius”Originally published in three New York Newspapers:

The Independent Journal, the New-York Packet, and the Daily Advertiser

Later (1788) published in two bound volumes

Topics in the Federalist PapersPart Topic

Part I, No. 1 “The Challenge and the Outline”Part II, Nos. 2-14 “The Utility of the Union”Part III, Nos. 15-22

“The ‘Insufficiency’ of the Articles of Confederation”

Part IV: Nos. 23-36

“The Minimum ‘Energetic’ Government Requirement

Part V: Nos. 37-51 “The Great Difficulty of Founding”Part VI: Nos. 52-84

“The True Principles of Republican Government”

What Should We Think About the Federalist Papers? James Madison – “The most authentic exposition of the text

of the Federal Constitution” Thomas Jefferson – “The best commentary on the principles

of government which ever was written”BUT ALSO TJ: “Some men look to Constitutions with sanctimonious

reverence . . . . but . . . law and institutions must go hand in hand with the progress of the human mind”

Robert Dahl – “What is more relevant . . . is the extent to which the members . . . did not know what they were doing.”

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Purpose of Federalist PapersTopics for discussion in these papersThe Union’s importance to prosperityThe inability of the current government to preserve itThe importance of a strong government to achieve

these goalsThe adherence of this proposal to republican principlesThe similarity of this proposal to state constitutionsThe importance of ratification to your liberty and

property

What Did They Mean by “Republican?”Based on classical virtues of Greece and Rome” “Republican” virtues included Limiting corruption and greedAvoiding self-interest in public actionAvoiding individual will in public actionVirtuous citizens needed to be strong defenders of liberty

and challenge the corruption and greed in governmentOnly by electing representatives who possessed

“republican” virtues could representative democracy work

• 1792-1793 – Jefferson and Madison create the “Democratic-Republican” Party

• 1820s – Democratic-Republicans split, become “Democrats” and “National Republicans,” ultimate Whig Party

• 1854 – new anti-slavery party emerges, called “Republican”

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Importance of “Republican” Ideology “Republican Motherhood” - idea that the first duty of

the republican woman was to instill republican virtues in her children Sons, so they would exhibit republican virtue in

public lifeDaughters, so they could train the next generation

of sonsIn the 1830s, the daughters and grand-daughters of

“republican mothers” used the rhetoric of republicanism to push for independence and equality in the workforce

Importance of “Republican” ideologyRepublican virtueProtection of property rights against runaway

democracyService to country even if it means personal sacrifice Military service an integral duty of the citizenMilitary service needed to be voluntary and temporary

Threats to Republican virtuesDebtMajority tyranny

The First Five Federalist Papers

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Federalist #1-5The failures of the Articles of Confederation

make it necessary to consider a new form of government

A government needs “energy” (power) to secure liberty

The only alternative to the new government is disunion

The importance of unity: the people in this country are unified because they have common ancestry, common language, religion, and customs

Federalist #1-5The successful revolution built on this

sense of unityThe first government didn’t meet the

peoples’ needs; it is necessary to change itThe best people in the country have

come together to create the new government; you should trust them

Federalist No. 1“Whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force”

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Day 2:• Federalist No 10; • Federalist No. 39; • Federalist No. 51

Federalist No. 10The Union as a Safeguard Against Domestic Faction and InsurrectionNovember 23, 1787

Context for Federalist 10

Hamilton’s essay Federalist No. 9 (published two days earlier, on Feb 21)

Hamilton wrote in response to Montesquieu, who said only a small republic could control “faction,” or the rise of competing political interests

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Context for Federalist 10

In Federalist 10, Madison picks up Hamilton’s argument to make the case that only a large republic – like, oh, the United States under its new Constitution – can control the evils of faction.

Federalist No. 10:“Liberty is to faction, what air is to fire, an aliment, without which it instantly expires. But it could not be a less folly to abolish liberty, which is essential to political life, because it nourish faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.”

Federalist No. 10If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote.

It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution.

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Federalist No. 10When a majority is included in a faction, the

form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens.

“To secure the public good and private rights against the danger of a [majority] faction, . . . is then the great object to which our inquiries are directed”

Protections of minority rights in the ConstitutionArticle I (Congress)The SenateThe Structure is not majoritarian (11 states have a

majority of population, but they only have 22% of the votes in the Senate)Overriding a presidential veto and ratifying treaties –

requires 2/3 voteImpeachment Conviction -- 2/3 vote in the Senate

The HouseOverriding a presidential veto – requires 2/3 vote

Protections of minority rights in the ConstitutionArticle II (Executive)The VetoElectoral College

Article IIICourt can overrule the other

branches

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Protections of minority rights in the ConstitutionArticle VAmendment process – ¾ required for ratificationExample – Equal Rights Amendments

Federalist No. 39The Conformity of the Plan to Republican PrinciplesJanuary 18, 1788

Federalist No. 39One of the Federalist Papers that talks about the

idea of Federalism – shared powers between the central and state governments

One of the most important issues the Constitutional Convention dealt withthe representatives of the States were concerned

that a new, more “energetic” central government would reduce or even eliminate the power of the state governments.

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Definition of a Republic

Madison, in Federalist 39:A republic is a government which

derives all its powers directly or indirectly from the great body of the people . . .. . . and is administered by persons

holding their offices during pleasure, for a limited period, or during good behavior

FederalismDefinition:Federalism is the mixed mode of

government, combining a central or “federal” government with regional governments (state governments) in a single political system. Its distinctive feature is a relationship of

shared authority between the two levels of government established.

FederalismThe opposite of a Federal system is a Unitary

SystemGovernment is controlled from the center; local

governments can do only what the central government gives them the power to do.

There are only 10 Federal systems in the world today Russia, Canada, Mexico, Brazil, Germany,

Switzerland, Argentina, Australia, India, and the United States.

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FederalismThe issue as argued In Federalist No. 39 is

between a National and a Federal perspective (The word “Federalism” is not used at all)National – central government is strongerFederal – state government is stronger

Madison is arguing that the Constitution is more state-friendly than its critics think it is

How the Constitution Divides Power between Federal and State Governments

Federal GovernmentArticle I, Section 8Including “Elastic

Clause”

StatesArticle I, Section 9Tenth Amendment

Inherent Conflict

Federalist No. 39Whether the general form and aspect of the government be strictly republican. It is evident that no other form would be reconcilable with the genius of the people of America;

If the plan of the convention, therefore, be found to depart from the republican character, its advocates must abandon it as no longer defensible.

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Federalist No. 51The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different DepartmentsFebruary 8, 1788

Federalist No. 51“Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.” “It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature?”

Federalist No. 51“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”

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Federalist No. 51“In framing a government which is to be administered by men over men, the great difficulty lies in this: “you must first enable the government to control the governed; “and in the next place oblige it to control itself.”

Day 3:• Federalist 68• Federalist 78• Federalist 84

Federalist No. 68The Mode of Electing the President March 14, 1788

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Electoral College (Art. II)The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. . . .The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; . . .

Electoral College (Amendment 12)They shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate.

Federalist No. 78The Judiciary DepartmentMay 28, 1788

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Thoughts about Judicial ReviewJohn Marshall spoke about this power during

the Virginia ratifying convention in 1788He was the chief justice who delivered the

opinion in the 1803 case Marbury v. Madisonwhich announced this doctrine “It is emphatically the province and duty of

the judicial department to say what the law is.”

Thoughts about Judicial Review

1798 – Virginia and Kentucky Resolutions that suggested that the states should have the right to overturn laws based on their perceived unconstitutionality – in response to the “Alien and Sedition Acts”

These resolutions were secretly written by Madison and Jefferson

Thoughts about Judicial ReviewThis connects to various nullification

crises in 19th century 1815 – Hartford Convention 1830 – South Carolina nullification

crisis 1850s-60s – secession

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Thoughts about Judicial ReviewPresidential pushback – Andrew Jackson

never really said but probably meant: "Marshall has made his decision: now let

him enforce it!“1832 case, Worcester v. Georgia, related

to relevance of Georgia law to Cherokee Territory, which was under federal jurisdiction

Thoughts about Judicial ReviewThe next time the court asserted its power of judicial review over a federal law was in 1857 with the case Dred Scott vs. Sanford, (which declared the Missouri Compromise unconstitutional, no big deal)

Federalist No. 84Certain General & Miscellaneous Objections to the Constitution Considered & AnsweredJuly 16, 1788

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Topics covered in Federalist No. 84Bill of RightsConcerns about the expense of a new,

more powerful governmentHamilton dismisses this out of hand – “it is certain that a government less

expensive would be incompetent to the purposes of the Union.”

STATE RATIFICATION VOTE YAY/NAYDelaware December 7, 1787 30-0

Pennsylvania December 12, 1787 46-23New Jersey December 18, 1787 38-0

Georgia December 31, 1787 26-0Connecticut January 8, 1788 128-40

Massachusetts February 6, 1788 187-168*Maryland April 26, 1788 63-11

South Carolina May 26, 1788 149-73New Hampshire June 21, 1788 47-47*

Virginia June 29, 1788 89-79*New York July 26, 1788 30-27*

North Carolina November 21, 1788 194-77*Rhode Island May 29, 1790 34-32*

* With Amendments

Bill of RightsIntroduced by Madison in the First

Congress (1789)17 Amendments introduced by Madison

and passed in the House of Representatives12 Passed by the Senate and referred to the

States for Ratification10 Ratified by the States – “Bill of Rights”1 additional amendment ratified in 1992 –

became the 27th Amendment

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1st 10 Amendments1. Religion, Speech, Press, Assembly,

Petition2.Keep and Bear Arms3.Quarter Troops4.Search and Seizure5.Grand jury, double jeopardy, self-

incrimination, “takings”

Bill of Rights6. Speedy and Public trial, impartial jury,

right to counsel7. Right to jury trial in civil suits8. Bail, Cruel or unusual punishment9. Rights mentioned may be incomplete10. Powers not delegated to federal govt

are reserved to the states